RE KHALEQUE

HCAL 2588/2018

[2022] HKCFI 2172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2588 OF 2018

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 13 April 2022 (the “Summons”) for extension of time to appeal my order dated 25 June 2021 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 24 September 2018.

2.  In his supporting affirmation, the Applicant alleged that he did not receive the Order within 14 days and should be given a reasonable opportunity to present his case.  Impliedly, he had received the Order, but not within 14 days.  Almost ten months had lapsed since the date of the Order.  A good explanation is required.  To assist him in presenting a proper case, this Court gave him directions by letter dated 23 June 2022 to file a statement within 14 days of the letter stating:

(a)  the date and circumstances under which he first received the Court Order or information about the outcome of his application for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (exhibiting documentary evidence, such as the envelope containing the Court Order, if available); and

(b)  the grounds of his intended appeal.

He was also informed that his application will be determined on paper seven days thereafter without a hearing whether he has complied with the above directions.  He lodged a statement on 30 June 2022 in purported compliance with the directions, which will be discussed below.

The Law

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success of the intended appeal;

(4)  prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  By 13 April 2022 when the Summons was filed, 292 days had lapsed since the date of the Order.  The application is more than nine months out of time, which is very substantial in the context of a fourteen-day appeal period. His explanation is as follows.  He was arrested on 2 August 2021 by the police for taking up unlawful employment and subsequently sentenced to 15 months’ imprisonment.  He was released from prison on 2 April 2022.  During his imprisonment, he was aware of the Judgment and Order.  By the time he was released, the Registry of the High Court was closed due to Covid-19 pandemic. Once the Registry re-opened, he took out the Summons immediately. 

5.  When this seemingly plausible explanation is tested against the date when the Order was issued, it falls hopeless apart.  My Order was issued on 25 June 2021.  The court staff are under very strict instructions to promptly and carefully send the Order by post.  Hong Kong Post usually delivers its mail within a day. The Order must have reached the Applicant at least 37 days before his arrest. Despite specific directions were given requiring him to give explanation for the delay, the Applicant disclosed partial truths and hide away his delay starting with his arrest which occurred more than a month after he should have received the Order.   He also withheld information about when he received the Order.  The delay was very substantial and he had no explanation or excuse for the delay.

Prospect of the intended appeal

6.  The Applicant advanced two grounds of appeal.  In his first ground, he quoted some legal principles and precedents about the high standard of fairness which has to be observed by the Board in non-refoulement proceedings; that the appeal before the Board is a rehearing and that the Board ought to have considered matters such as the country conditions of the Applicant’s country of origin.  In his second ground, he argued that at common law there are minimum standards of procedural fairness required in the decision-making process and the decision-maker is under a duty to act fairly.  Both grounds revolve around procedural fairness.  The legal principles quoted by the Applicant are well-recognised legal principles applicable to non-refoulement proceedings.  Other than a complaint that the Board might not have conducted the appeal as a rehearing and had not considered the country of origin information in the Applicant’s home country, the Applicant gave no particulars of how the Board or this Court was in breach of these principles and high standard of fairness.  In the absence of specific complaints of breach of procedural fairness, this Court could only rigorously re-examined the Form Call-1 and the Decision with anxious scrutiny for procedural unfairness.   

7.  In the Decision, the Board did not mention that the appeal was a rehearing.  That the appeal before the Board is a rehearing or trial de novo is a very basic principle which no adjudicator would not be familiar with.  The fact it was not mentioned in the Decision does not mean it was not observed or that the Board did not proceed on the basis of a rehearing.  Indeed, reading the Decision, it is amply clear that the Board conducted a rehearing.  It asked questions of the Applicant, discussed his non-refoulement claim under all applicable grounds with him and gave him the opportunity to make submissions: paragraph 7 of the Decision.  It set out the legal principles applicable to the four applicable grounds under the Unified Screening Mechanisms (“USM”): paragraphs 11 to 22 of the Decision.  It set out the Applicant’s background and his claim: paragraphs 5 to 10.  It made detail analysis of his evidence, the country of origin information, his fear of Awami League, the conditions for becoming a member of Jamaat-e-Islami which according to the Applicant was the underlying cause of the harm or risk of harm from his Awami League enemies: paragraphs 23 to 41.  Then, it applied the law applicable to the four applicable grounds under the USM to the facts found above and reached its conclusion as to the Applicant’s entitlement to protection in paragraphs 42 to 51.  The way the Board reached its conclusion evidenced an independent decision-making process wholly separate from the decision of the Director in the Notice.  It also evidenced a thorough consideration of the country of origin information in the Applicant’s home country.  There is no substance in these two specific complaints made by the Applicant.

8.  I repeat paragraph 24 of the Form Call-1 that having rigorously examined the Decision and all the papers with anxious scrutiny, I was satisfied that there was no error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings, or irrationality in the Decision. Having rigorously re-examined the Decision, I stand by the above conclusion. There is no realistic prospect of success in the intended appeal.

Prejudice to the respondent

9.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

10.  The Applicant has no arguable grounds of appeal and has no valid explanation for the very substantial delay.  His intended appeal has no prospect of success.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, the application for extension of time to appeal is refused.